By Bryan Benard
In recent years, the Equal Employment Opportunity Commission (EEOC) has received more retaliation charges than any other type of discrimination claim. Last year, almost 45 percent of EEOC charges included an allegation of retaliation – yes, almost half!
Because of the alarming frequency of charges and the need for employees to report discrimination without fear of reprisal, the EEOC recently issued a new enforcement guidance on retaliation that replaces and updates its 1998 compliance manual on the subject. Even though the EEOC’s position is not necessarily the final word on these issues, as courts often disagree with the EEOC’s interpretation of federal discrimination laws, employers should know how EEOC staff, including its investigators and litigators, will approach retaliation charges. Here is a look at the new guidance with tips on how to avoid becoming another retaliation charge statistic.
Overview of Retaliation and Protected Activities
The federal discrimination laws enforced by the EEOC, such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and others, prohibit employers from taking adverse action against an employee or applicant because the individual engaged in “protected activity.” Adverse actions that can be seen as retaliatory by the EEOC include not just discipline or discharge, but also transferring the employee to a less desirable position or shift, giving a negative or lower performance evaluation, increasing scrutiny, or making the person’s work more difficult.
“Protected activity” falls into two categories: participation and opposition. Participation activity is when an individual “participates” in an EEO process, which can include filing a charge, being involved in an investigation, or testifying or serving as a witness in a proceeding or hearing. Opposition activity is when an individual complains, questions, or otherwise opposes any discriminatory practice. Employees have the right to engage in both types of protected activity without being subject to retaliation from their employer.
Harassment As Retaliation
According to the EEOC, harassing conduct can be seen as retaliation, even if it does not rise to the level of being severe or pervasive enough to alter the terms and conditions of employment. The agency states that harassment can constitute actionable retaliation so long as the conduct is sufficiently material to deter protected activity in the given context.
Evidence That May Support a Retaliation Finding
To determine whether there is a causal connection between a materially adverse action and the individual’s protected activity, the EEOC will consider different types of relevant evidence, alone or in combination. Some of the facts that may lead to a retaliation finding include:
- Suspicious timing, especially when the adverse action occurs shortly after the individual engaged in protected activity;
- Inconsistent or shifting explanations, such as where the employer changes its stated reasons for taking the adverse action;
- Treating similarly situated employees more favorably than the individual who engaged in protected activity;
- Statements or other evidence that suggest the employer’s justification for taking the adverse action is not believable, was pre-determined, or is hiding a retaliatory reason.
Defeating A Retaliation Claim
Even if protected activity and an adverse action occurred, an employer may escape a retaliation claim if it can show that it was unaware of the individual’s protected activity when the adverse action decision was made, or if it can establish a legitimate non-retaliatory reason for the adverse action. Examples of legitimate, non-retaliatory reasons can include poor job performance, misconduct, reductions in force, or inadequate qualifications.
Top Tips To Prevent Retaliation
Employees do not get a “free pass” to engage in misconduct or slack off on the job just because they have engaged in protected activity. You are still entitled to enforce your policies and expectations and operate your business, as long as you do so in a non-discriminatory, non-retaliatory manner. To help avoid retaliation claims in the first place, and defend against them when they are alleged, consider implementing these proactive measures:
- Don’t tolerate retaliation; as tempting as it can be to get rid of an employee who complains of discriminatory conduct, don’t allow your managers and supervisors to harbor a grudge; instead, try to keep emotions and personal feelings out of all employment decisions.
- Train your managers, supervisors, and team leads on what retaliation is and how to avoid it – provide examples of do’s and don’ts and allow them to ask questions to ensure understanding; keep copies of your training materials and a list of who was trained.
- Conduct mandatory training on discrimination, harassment, and retaliation for all employees on a regular basis – every year, if possible; again, retain your training materials and your list of attendees.
- Include an anti-retaliation policy in your employee handbook, stating that your company will not tolerate retaliatory conduct; also include a reporting mechanism in your policy so that employees know how to report suspected retaliation before it escalates.
- When an employee engages in protected activity (g., complains of sexual harassment, files a race discrimination charge, etc.), instruct the individual and all those involved that retaliation is prohibited; this reminder should be an essential part of every workplace investigation involving allegations of discrimination or harassment.
- Check back with employees who have engaged in protected activities to make sure they are not experiencing retaliation; being proactive can help prevent questionable conduct from festering into a retaliation charge.
- When considering any adverse action, review whether the person has opposed discriminatory behavior or participated in an EEO matter and weigh the retaliation risk carefully; make sure to follow your policies and avoid treating the person more severely than other employees who have engaged in similar misconduct or performance problems.
- Clearly document your legitimate, non-retaliatory reasons for taking any adverse action; proper documentation will be key if you must defend your decisions during an EEOC investigation or in court.
EEOC Resources
In addition to its new enforcement guidance on retaliation, the EEOC also released a question and answer document as well as a fact sheet for small businesses. These companion documents offer additional insight into the EEOC’s treatment of retaliation cases and can serve as useful training materials.
